Standing Committee A

[Mrs. Joan Humblein the Chair]

Joan Humble: I remind the Committee that there is a money resolution in connection with the Bill, copies of which are available in the room. As a general rule, adequate notice should be given of amendments. I and my fellow Chairman do not intend to call starred amendments, including any that may be reached during an afternoon sitting of the Committee. Given the weather forecast for today, hon. Gentlemen may remove their jackets. I call the Minister to move the programme motion.

Edward Miliband: I beg to move,
That—
(1) during proceedings on the Charities Bill [Lords] the Standing Committee shall (in addition to its first meeting at 10.30 a.m. on Tuesday 4th July) meet—
(a) at 4.00 p.m. on Tuesday 4th July;
(b) at 9.00 a.m. and 1.00 p.m. on Thursday 6th July;
(c) at 10.30 a.m. and 4.00 p.m. on Tuesday 11th July;
(d) at 9.00 a.m. and 1.00 p.m. on Thursday 13th July;
(2) the proceedings shall be taken in the following order: Clauses 1 to 6; Schedules 1 and 2; Clauses 7 and 8; Schedules 3 and 4; Clauses 9 to 12; Schedule 5; Clauses 13 to 30; Schedule 6; Clauses 31 to 34; Schedule 7; Clauses 35 to 74; Schedules 8 to 10; Clauses 75 to 78; new Clauses; new Schedules; remaining proceedings on the Bill;
(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 4.00 p.m. on Thursday 13th July.
It is a pleasure to serve under your chairmanship, Mrs. Humble. The Committee has the privilege of considering a Bill that will make a real difference to the charities and people of this country. As I said on Second Reading, it has been well researched, having been the subject of the strategy unit report of 2002 and well examined by the Joint Committee. I welcome the fact that the programme motion will allow 20 hours of debate in Committee.
The Government will approach the Bill in a charitable spirit, listen to arguments that are made by hon. Members on both sides of the Committee and take on board those suggestions that make sense and which will contribute toward a better Bill. I am delighted to be ably assisted by my hon. Friend the Member for Erewash (Liz Blackman), the Government Whip. As a former teacher, she will ensure good order and behaviour—at least on our side. The Bill’s scrutiny will be improved by the Opposition spokesmen, the hon. Member for Cheltenham (Martin Horwood), who has direct experience of working in some of our major charities, and the hon. Member for Isle of Wight (Mr. Turner), who is well known for his diligence and attention to detail.
We also have a wealth of wisdom and expertise on the Government Benches, including that of my right hon. Friend the Member for Cardiff, South and Penarth (Alun Michael), the former deputy Home Secretary, and my hon. Friend the Member for High Peak (Tom Levitt), the chair of the all-party group on the community and voluntary sector, and many other talented Members.
We all agree that the proper scrutiny of the Bill is an important service that Parliament owes to the charities of this country, so we on the Government side will keep our contributions short and to the point, so that all clauses of the Bill can be considered properly.

Andrew Turner: Mrs. Humble, it is a pleasure to serve under your chairmanship. As the Parliamentary Secretary said, the Bill is important and presents a huge number of opportunities for charities. We shall do our best to scrutinise it in an effective manner and not waste time. We are anxious to ensure that it is examined in an even fashion, not least because part 3 was not as vigorously scrutinised in another place as some other parts have been.
As a former teacher, I assure the Parliamentary Secretary that that qualification does not enable anyone to impose discipline on anyone else. It is far more a matter of personality than of former occupation. However, Opposition Members will do their best to scrutinise the Bill in the expected manner.

Question put and agreed to.

Clause 1

Meaning of “charity”

Martin Horwood: I beg to move amendment No. 70, in clauseÂ 1,Â pageÂ 1,Â lineÂ 9,Â leave out subsection (2).

Joan Humble: With this it will be convenient to discuss the following amendments: No. 1, in clause 2, pageÂ 2, lineÂ 22,Â at end insert—
‘(1a) the promotion of the efficiency of the police service or the advancement of welfare for police officers or former police officers and their dependants.’.
No. 2, in clauseÂ 2,Â pageÂ 2,Â leave out lines 26 and 27 and insert—
‘belief in a supernatural principle, being or thing and acceptance and observance of certain canons of conduct to give effect to those beliefs,’.
No. 53, in clauseÂ 2,Â pageÂ 2,Â lineÂ 34,Â leave out paragraph (d).
No. 3, in clause 2, page 3, line 7, leave out subsection (7).

Martin Horwood: Mrs. Humble, I echo the comments of the other Front-Bench spokesmen and express my gratitude for your chairmanship, which I am sure will enlighten what may in some respects be a heated debate. I congratulate the Minister on the tone of his introduction to our proceedings and on his approach to the Bill generally. It is much appreciated. Like the hon. Member for Isle of Wight, I think that, although members of the Committee will undoubtedly disagree on certain matters, the general tone of the debate will be constructive and intended to improve the quality of the Bill.
Amendment No. 70 would remove subsection (2), which seems to lock inconsistency into charity law. That raises a general issue for many charities, particularly those membership and fundraising organisations that often confer minimal benefits, such as newsletters or membership of a scheme, in return for otherwise charitable donations, and which in the past have struggled with numerous definitions of what is and what is not charitable.
For example, let us suppose that a membership organisation or another organisation wished to launch a fundraising scheme—not a formal membership drive, but a fundraising scheme that is designed to attract members and which offers in return some modest benefit, such as visits to premises or a newsletter. The mere fact that it is a charitable organisation would not in the past have been sufficient to convince the Inland Revenue or Her Majesty’s Customs and Excise that the proposed scheme was fully charitable. It would have been necessary for the charity to go through another set of hoops to satisfy the Inland Revenue and qualify for gift aid, and through another, different set of hoops to persuade Customs and Excise that it should not carry VAT.
The merger of Customs and Excise and the Inland Revenue into Her Majesty’s Revenue and Customs seemed to offer the prospect of ironing out that type of inconsistency. That was an encouraging sign of joined-up government, but I talked to a fundraiser the other day who said that, if anything, the situation seems to have got worse since the merger. There is clearly an issue for the Government to address, if not through the amendment then by other means, and I would be grateful for the Minister’s comments.
Amendment No.1, tabled by the hon. Member for Isle of Wight would insert:
“the promotion of the efficiency of the police service or the advancement of welfare for police officers or former police offers and their dependants;”
That is a worthy cause, which should be regarded as charitable and which deserves our complete support. My only slight reservation is that we already have 13 heads of charity. If we added everything that we can think of, we could end up with a list that is hundreds long.

Alun Michael: How would the hon. Gentleman support that amendment? As he said, it seems worthy of support, in theory and at first blush, but how would he deal with firefighters, those who man lifeboats and members of similar professions that provide a distinct and special service?

Martin Horwood: That is a reasonable point. However, part of one of the new heads of charity is “the saving of lives”, which might encompass both of the right hon. Gentleman’s suggested examples. On the one hand, the amendment might seem to be over-egging the pudding somewhat, but on the other hand, this is probably the last opportunity that anyone has to add to the list of 13, and I have no problem with making it a list of 14. I would be happy to see the amendment made: it seems harmless if not entirely necessary, given that provisions for analogous charitable purposes might well have allowed the subject of the amendment to pass through as a charitable purpose.

Tom Levitt: I am intrigued as to whether we are going to have two weeks of debate on amendments promoted on the basis that they are harmless, albeit not entirely necessary. Will the hon. Gentleman clarify that that is not the approach he will be taking to the Bill as a whole?

Martin Horwood: I am grateful to the hon. Gentleman for that intervention, which I am sure was made in the friendly spirit of the debate. In general, we should not seek to add unnecessary provisions, but as I said, this is the last opportunity to add to the list of 13. I see no problem with adding what the amendment proposes.
Amendment No. 2 is much more serious. It would replace the hard-negotiated provision that emerged from another place, which does not seek to define religion but does at least say that religion includes:
“(i) a religion which involves belief in more than one god, and
(ii) a religion which does not involve a belief in a god”.
That is quite an important and thoughtful provision in the Bill as it stands. The hon. Member for Isle of Wight wishes to replace it with what seems to be an attempt to define religion—a brave thing for a politician to do. However, there are many examples of religions that might not pass the test set out in the amendment.
Belief in a god is not the only critical factor in a religion. Many religions regard the universe and everything in it, including any beings such as gods or deities, as within nature and one part of a whole. Theravada Buddhism, Taoism and, arguably, many disciplines within Hinduism might present their beliefs as “all within nature”, so to them the idea of anything being supernatural would be meaningless. Amendment No. 2 would therefore be difficult for many eastern religions to accept.
I suspect, however, that the amendment is aimed not at eastern religions but at those people who have no belief in God. The important element of the amendment may be its removal of the reference to
“religion which does not involve belief in a god”.
In other words, it is aimed at those secularists and humanists who have religious instincts but do not believe in a deity. According to the last census, 17 per cent. of my constituents fall into that category. It is not for us, using the Charities Bill, to say that according to our definition such people do not have a religious belief. Humanists have strong ethical and moral positions on many issues and canons of conduct derived from moral and philosophical beliefs. To deny that they are religious in the same sense as people who happen to believe in a deity is insulting to their beliefs. They have a sense of awe and wonder at the universe and the natural world and take great inspiration from the majesty of nature and its processes. That they do not fall into the hon. Gentleman’s category of having
“belief in a supernatural principle”
does not mean that they are not religious in the sense that the Bill is trying to suggest.
Even some parts of the Church of England might have a problem with the amendment. Some dioceses might take issue with having to believe in a god as defined in the Bill. I can imagine a diocese losing its charitable status one day after the bishop reflects on his theology course and decides that he does not believe in God after all, or at least not in the sense that is popularly intended.
Many organisations, including devout religious organisations such as the Association for British Muslims, are perfectly happy with the current phraseology. The association wrote to me and, I suspect, to other hon. Members to say that the clause will remove the requirement that religion, in charity law, necessarily involves worship of a supreme being and will open the way for religion to be interpreted broadly and on international human rights principles. Before the Bill left the House of Lords, Lord Bassam accepted that worship was not a necessary component of religion in charity law. According to the Association for British Muslims, that appeared to be a satisfactory conclusion to the definition question, and the association went on to query the Charity Commission’s intentions in respect of implementing the clause sufficiently liberally.
The clause, which has commanded widespread support, was the subject of thoughtful negotiation. We should not overturn it hastily in favour of the idea of a supernatural principle, which is open to a lot of interpretation.

James Duddridge: I am unclear whether the hon. Gentleman’s main problem is with the deletion of lines 26 and 27, or with the insertion of the wording proposed in the amendment. The wording comes from Australian law, where it is used quite satisfactorily.

Martin Horwood: One is probably intended to achieve the other. There is clearly a problem with trying to define religion using the term “supernatural principle”, which may well not apply to many religious traditions, whether they involve belief in a god or not. There is also a problem with taking out those two lines, which were thoughtfully negotiated and would guarantee charitable status for traditions that do not involve belief in a single god.
I am not attempting to demonstrate that my view on religion or the definition of religion, my interpretation of humanism as religion or even my interpretation of Theravada Buddhism or Taoism is absolutely correct. I am simply pointing out that the issue is a minefield into which politicians should not stray. The hon. Member for Isle of Wight would be wise to withdraw his amendment.

Andrew Turner: I am of course grateful for the hon. Gentleman’s unsolicited advice, but does he really mean it when he says that humanism is a form of religion?

Martin Horwood: The existing charity law allows charitable status to the British Humanist Association, so I hesitate to contradict our learned judges in their judgment that humanism counts as a religion. There is an organisation that I believe calls itself the organisation of religious humanists—I do not remember the exact name—which has sought to attach to humanism certain ceremonials and rituals and some of the outward forms of traditional religion. The concept is a moveable feast, therefore, and we should hesitate before defining things too closely in the Bill. Existing charity law has been quite adequate in this respect and the new draft Bill provides satisfactory clarification.
We are also considering amendment No. 3, which appears to be intended to remove the clause that would make charitable purposes and public benefit retrospective. I need to listen to the arguments of the hon. Member for Isle of Wight before passing judgment on that. I suspect that amendment No. 53 is the chess amendment, which seeks to remove the requirement for physical exertion in schools as part of the definition of sport. I have a lot of sympathy with that. It might also apply to other, motorised forms of sport that might also pretty clearly count as sport. The Bill’s requirement of physical exertion seems slightly unnecessary, although if the brain is an organ and is exerted in the process of playing chess, that may be physical exertion of a kind.
We could consider an amendment that would define sport as anything that ever appeared in the old BBC programme “Grandstand”, which seemed to cover just about everything, but I suspect that the lawyers would not like that. However, I am sympathetic to the amendment and I look forward to the hon. Gentleman’s supporting comments.

Andrew Turner: I shall come to the amendment proposed by the hon. Member for Cheltenham at the end of my remarks, because it ties in well with my amendment No. 3. It is appropriate to start, however, with amendment No. 1, as he has offered his somewhat qualified support for it. It proposes the inclusion of the promotion of the efficiency of the police service and welfare of police dependants as a specified charitable purpose.
I am grateful to the Police Dependants Trust for giving me information on the amendment. The trust spends something like £1.9 million a year in support of police officers, former police officers and their families. It helps some 5,000 families, a number which the trust estimates to be approximately one fifth of the number of families that could be registered and that should perhaps be helped. It was set up after the tragic death of three police officers in Shepherd’s Bush in 1966, which I think was the first occasion when the murder of police officers made an impact on my growing intellect. My intellect may not have grown very far, but that event impacted on it at the time. The trust is a small and efficient organisation that was set up to support the welfare departments of a number of constabularies. However, other organisations would benefit from the amendment as well—many constabularies have their own police charities.
I am proposing the inclusion of the provision because there has been some concern in the trust that it may be excluded if it is not specifically included in the definition in clause 2(2). Its argument is that police officers occupy a unique position in British society as officers of the Crown, whose daily responsibility is to put themselves in harm’s way. I do not for a moment exclude those other representatives of emergency provisions, such as the fire service, the ambulance service and the Royal National Lifeboat Institution to which the right hon. Member for Cardiff, South and Penarth (Alun Michael) referred a moment ago.

Alun Michael: Is not the answer the same in respect of the police as it is in respect of those organisations and professions, in that there is no obstacle to charitable registration under the Bill, as drafted? Indeed, is it not the case that the Police Dependants Trust is registered as a charity and there is no suggestion that it would cease to be so if the Bill were enacted?

Andrew Turner: I suspect that the same argument could be advanced in respect of clause 2(2)(l), which was added to the Bill in another place for the promotion
“of the efficiency of the armed forces of the Crown”
to be considered a recognised charitable purpose. That seems to represent a similar recognition of the particular role of the police in serving the community and putting themselves at risk.

Alun Michael: Is not the argument that, having extended the provision to one particular activity, where do we stop? The hon. Gentleman seeks to extend matters in the same way. We could argue that, in another place, they went further than they needed to although a tradition in both Houses that goes back to almost the first Act of Parliament required that people practise with bows and arrows so that they were ready when they were called to the armed services. We could say that there is a long-standing tradition in the armed services that needs to be treasured in the same way that we treasure arcane and out-of-date legislation, and that it should stay rather than seeming to dilute and diminish the category that was added by their lordships.

Andrew Turner: Perhaps we need to reinstate a charitable purpose that had been a charitable purpose until the beginning of the 20th century in respect of the practice of defending oneself and one’s family by the use of arms. That charitable purpose has somewhat disappeared in recent years, but I do not believe that a distinction can be drawn except on the basis of antiquity. One of the things that the Bill is meant to do is to bring charity law up to date, so it would not do any harm to include the welfare of police officers and their dependants, particularly because the Home Office and the police force seem to be withdrawing from becoming involved in such work. That is not because of any malice, but because they want to focus their funds and resources on front-line policing. The funding of police welfare and its provision have suffered and there is a need for a charity such as that to remain involved.
One of the worries that has been drawn to my attention is that the charity commissioners have inspected some police welfare funds and advised them that they are in danger of not being recognised as charitable organisations. That is on the basis of those funds—those charities—making what they consider to be the best decisions about the deployment of their resources in the interests of their beneficiaries. The problem may be the application of the public benefit test that we shall come to later in our debate rather than clause 2, but I am worried—as is the Police Dependants Trust—that too tight a definition of the purpose of the charity could restrict the activities of the trust. It says that its chairman, Norrie Flowers, repeatedly approached the Parliamentary Secretary’s predecessors who were responsible for such matters and those at the Home Office for support for the amendment, but they did not agree with it.
The letter that I have received from the Charity Commission on its treatment of the Police Dependants Trust and similar charities—I am referring to a similar charity in this case—tells me that charities have certainly received formal reviews from the Charity Commission. The commission tells me that such visits are not inspections, but that they are designed to ensure compliance with the legal framework and to advise on good practice. The commission says that it was picking up on the charities because they did not apply a particular test when allocating resources in the interests of needy dependants of police officers and former police officers.
It is worrying that the Charity Commission is imposing such a restrictive test that the Police Dependants Trust and other charities fear that they may be squeezed out. Clause 1(1) states that
“ ‘charity’ means an institution which—
is established for charitable purposes only”.
That is why I believe that it is appropriate to include the Police Dependants Trust and other such organisations within the definition: they have been advised that giving a Christmas bonus to police widows is not a charitable purpose, because it does not involve an assessment of need, and that is why the trust has asked for the amendment. I think that it is frankly silly of the Charity Commission to be so pernickety in the way that they advise, inspect and review small charities, and to expect charities to be so pernickety as well. Nevertheless, that is the advice that the commission has given, and that is why I want the Bill to be amended.
As the hon. Member for Cheltenham said, amendment No. 2 is designed to introduce a clear definition of religion. Contrary to what he said about clause 2(3) being negotiated and agreed, the Committee that scrutinised the draft Bill said that more needed to be done about the definition of religion. The Committee made some proposals, but the reason for my definition is that confusion arises from the Charity Commission’s treatment of charities.
At present, the charity law definition of religion is inconsistent. On the one hand, case law generally indicates that the term refers to philosophies based on belief in, and worship of, a deity. In 1999, the Charity Commission rejected the Church of Scientology’s application for registration on that basis. On the other hand, it has registered organisations that promote multi-deity religions, such as Hinduism, and no-deity religions, such as some schools of Buddhism. I have no particular complaint about what is in clause 2(3); my complaint is about what is not in it, which is why I am proposing what I consider to be a better definition.

Edward Miliband: Modestly.

Andrew Turner: The reason I can do so modestly is that it is not my definition.

Martin Horwood: If the hon. Gentleman is not concerned about what is already included in paragraph (a), why is he not proposing his amendment by way of addition rather than substitution?

Andrew Turner: The reason is that I believe the amendment includes what is in paragraph (a). Technically, it deletes the paragraph, but the words of the amendment are inclusive of the definition in the paragraph. Not all religions believe in a god, or a supernatural being, but they do believe in a supernatural thing or principle. The hon. Gentleman suggested that humanism is a religion. That seems to me to be contrary to the tenets of most humanists, although I accept that there may be some who define humanism as a religion. The current definition, however, does not clarify what a religion actually is—we are left with a complete void on that. The amendment, as my hon. Friend the Member for Rochford and Southend, East (James Duddridge) said, is based on the Australian definition and defines religion as
“belief in a supernatural principle, being or thing and acceptance and observance of certain canons of conduct to give effect to those beliefs.”

Alun Michael: I am not sure that it does. Surely the hon. Gentleman’s wording requires the impossible. It is essentially philosophically unsound and confuses beliefs and principles. One cannot give effect to a belief; one either believes something or does not. It is possible to act consistently with a belief or a set of principles based on a belief, but not to put a belief into practice. Therefore, his wording is entirely useless.

Andrew Turner: The right hon. Gentleman is clearly cleverer than the whole band of Australian lawyers and judges who found it a perfectly adequate definition. I congratulate him on his imaginative argument. He would probably be paid well at the Australian Bar for promoting it. Putting one’s principles into action is something that politicians try to do every day. I suspect that those with religious beliefs try to do so as well.

Alun Michael: The hon. Gentleman has missed my point. Of course we try to put principles into action, but his wording requires beliefs to be put into action. A belief cannot be put into action; one either believes something or does not. Principles are put into action, as he reflected in the wording of his response to me.

Andrew Turner: As I said, the right hon. Gentleman might do well if he were looking for a career at the Australian Bar. It is my view—to avoid using a difficult word—that the definition is broad enough to cover polytheistic and atheistic religions and to indicate the boundaries of religion by requiring a belief in something supernatural.

Tom Levitt: As a non-believer, I am trying to come at the issue objectively, but I do not see how one can have an atheistic religion. It seems to me that a belief system must be based on some belief, but how will that be proven? If I adhered to a religion that I claimed included a belief in a supernatural principle, how would the hon. Gentleman’s amendment test whether the principle that I believed in was supernatural?

Andrew Turner: The hon. Gentleman goes down an interesting path. As a believer, I also find it difficult to believe that one can have an atheistic religion, just as I find it difficult to believe that one can describe humanism as a religion. I cannot answer his question, but I can say that the definition has served other common law jurisdictions well. It would have the advantage of allowing religious charities to carry out charitable activities in the practical expression of their belief, whether it is a belief in one god, many gods or indeed no god but another supernatural thing or being.

Martin Horwood: As I said in my opening remarks, it is not just a question of belief in a god. It is also a question whether there is anything supernatural—outside or above nature. What does the hon. Gentleman regard as the supernatural principle in Theravada Buddhism?

Andrew Turner: I am not sufficiently well acquainted with Theravada Buddhism to answer that question. It would be a question for interpretation by the charity tribunal or the courts. I think that they will be inclined to take the natural understanding of the word “supernatural” in England at the time, and that most people would come to the same view of what is meant by it, although I accept that a minority might have a different view.

Tom Levitt: Does the hon. Gentleman intend it to be his amendment’s purpose to exclude what we might call the non-religious religions—those with humanistic, agnostic or atheistic views?

Andrew Turner: As charities with charitable purposes, certainly not. However, it is my intention that they should continue to be recognised under what has been called the catch-all phrase rather than under subsection (2)(c). Let me make it absolutely clear that that is my intention because it is curious that on the one hand, one should claim that one is humanist and therefore does not believe in religion and yet, on the other hand, claim that humanism is, of itself, a religion.
The British Humanist Association has made the case on human rights and other grounds for the equivalent treatment, within the same words, of humanism and religions. The Bill allows an equivalent treatment within the same clause and within the same section of the same clause. All it does not do is permit an equivalent treatment within the same subsection of the same clause because religions are under subsection (2)(c) and non-religions are included within subsection (2)(m).
The British Humanist Association has said that:
“putting humanism or any comparable beliefs under the catch-all head is not only insulting and discriminatory but is damaging because it gives religion its own head while relegating non-religious belief systems to the residual head, implying that they are not equivalent in kind or value.”
There is no such implication. They are both charitable purposes; that is what clause 2(2) says. All they are is charitable purposes of different kinds. Asserting that they are equivalent and therefore must be treated by the same words is no different from asserting that sport is a kind of religion and therefore it is insulting to the followers of football that that should be covered by subsection (2)(g) rather than subsection (2)(c). Therefore, I hope that the hon. Gentleman will understand that I have no particular down on humanism or humanists but it is curious that they should be described as religious.
Finally, I come to the point raised by the hon. Member for Cheltenham in respect of the letter from Mr. Rosser-Owen. That is an interesting letter because it clearly sets out the problem, which is that the Charity Commission’s interpretation of religion is inconsistent with case law. That is why we have to have something in the provision.
Normally, I would be happy to allow the common law to develop. Later on, I am sure that I will be telling the hon. Gentleman that he ought to allow the common law to develop. However Mr. Rosser-Owen has drawn our attention to the fact that the Charity Commission has said that they will continue to apply the old test, not withstanding the clear intention of the new provision. Its commentary on the religious head of charity says that:
“The advancement of religion includes many different faiths and belief systems involving belief in one supreme being, many or none, including, for example, Christianity, Judaism and Islam as well as Hinduism and Buddhism.”
That letter has been sent to hon. Members. That is reflected in the Charities Bill—I know because I have three copies—that states that the term religion includes
(i) a religion which involves belief in more than one god, and
(ii) a religion which does not involve belief in a god.
The criteria that we use to decide whether or not an organisation is advancing a religion, as that is understood by charity law, include the following. Do adherents have a belief in a supreme belief—that is a question that is addressed by my amendment—do adherents worship the supreme being? There is no obligation for worship in my amendment. Does the organisation advance the religion and is the organisation established for the benefit of the public? It is my view that the Charity Commission’s statements in paragraph 10 are contradictory with the case law and with the law as it is set out in the Bill.

Martin Horwood: I am grateful to the hon. Gentleman and I hesitate to accuse him of selective quotation but that is what he is doing. The letter from Mr. Rosser-Owen specifically supports the existing phraseology in the Bill. Therefore to use it in support of his amendment, which removes that wording, is perverse, is it not?

Andrew Turner: The problem is that the Charity Commission is not applying the wording in the Bill. Despite the fact that the wording in the Bill is meant to be based on case law, as it has been established, the Charity Commission does not appear to be applying it. That is why it would be better to have a clearer definition of religion in the Bill.
I accept that we may be arrogant, unwise, incautious and hasty to attempt to resolve the problem. We may be arrogant, unwise, incautious or hasty to attempt to resolve this problem. However, this is what we are paid for; not to be arrogant, hasty, incautious or unwise, but to try to clarify the law where it is confused. That is my only purpose in tabling amendment No. 2.
I am grateful for the hon. Gentleman’s support for amendment No. 53, which deals with a pre-eminent absurdity in the Bill. Clause 2(2)(g) defines the advancement of amateur sport as a charitable purpose and subsection (3)(d) attempts to define what is meant by sport, which is,
“sport which involves physical skill and exertion”.
Hon. Members will recall that on Second Reading the hon. Member for Birmingham, Northfield (Richard Burden) asked the Chancellor of the Duchy of Lancaster about the inclusion and exclusion of certain activities and whether those constituted sport within the definition in the Bill. He said:
“A number of activities which common sense indicates are sports are often excluded from the definition of being sports by the Charity Commission, including angling, ballooning, billiards, pool, snooker, crossbow shooting, rifle shooting, pistol shooting, flying, gliding, motor sports and parachuting.”
He then declared an interest as a participant in one of those sports. The Chancellor of the Duchy of Lancaster answered, saying that the Charity Commission
“will be willing to consider any representations on what exactly the addition to charitable purposes will mean.” —[Official Report, 26 June 2006; Vol. 448, c. 26.]
It is all very well for the commission to consider representations after we have passed the law, but I am concerned that by passing it, we are excluding perfectly worthy activities.
I appreciate that mountaineering may require more physical exertion than parachuting—I understand that it is more difficult to go up than to come down, as some mountaineers have discovered to their cost—but the principle of the requirement to exert oneself in the interests of sport appeals to Victorian Corinthian attitudes that I thought were out of date in the modern Conservative party, not to mention the Labour party. The definition of “sport” is a little bit narrow. It would be better to leave a broad definition to the Charity Commission so it can apply the common understanding of sport.
I do not play chess because it involves far too much mental exertion. In my view, other activities, such as rifle shooting and clay pigeon shooting, involve physical exertion as well as mental exertion, but the Charity Commission has a different view. Judging by the shape of many of those involved in darts, it does not involve much physical or mental exertion. [Interruption.] I apologise to any hon. Members involved and, of course, I do not refer to those in the Newport Conservative club darts team on the Isle of Wight.
I hope that hon. Members will look favourably on amendment No. 53, which allows a bit more latitude, which is justified.

Helen Goodman: Before the hon. Gentleman finishes making his point about physical and non-physical sport, including chess and hang-gliding, why is his concern not covered by section 1 of the Recreational Charities Act 1958? The explanatory notes say:
“it is a charitable purpose to provide, in the interests of social welfare, facilities for recreation or other leisure-time occupation”.
Why is the hon. Gentleman not concerned about that?

Andrew Turner: Someone will have to furnish me with a copy of the explanatory notes. [Interruption.] I have been struck with inspiration, but not necessarily enough to answer. I am not convinced that there is sufficient meat in the explanatory note; if there had been, the Chancellor of the Duchy of Lancaster would have quoted it on Second Reading. I shall revert to the hon. Lady’s question when we discuss clause 5, if I catch your eye, Mrs. Humble.
Amendment No. 3 is a genuine probing amendment to find out exactly what clause 2(7) means. Subsection (7) was inserted by the Government in a House of Lords Committee sitting, during which Lord Bassam of Brighton said, in respect of his amendment No. 7 and of amendment No. 86, that
“The amendments are intended to make it absolutely clear that references to charitable purposes, or to institutions with charitable purposes in any enactments and documents, are to be taken as having the meaning given by the Bill in clause 2(1). The amendments are belt and braces measures, and do not change the law.”—[Official Report, House of Lords, 28 June 2006; Vol. 673, c. 150.]
The amendments appear to oppose amendment No. 70, to which the hon. Member for Cheltenham spoke at the beginning of the debate on this group of amendments. One of the amendments says essentially that there is no change in the definition of “charitable purpose” and other says that there is a change to the definition of “charity”. Will the Parliamentary Secretary explain how clause 4(6) and 4(7) on page 3 work alongside clause 1(2) on page 1? Perhaps he will also reflect on the advice given to me by the Charity Law Association, which is contained in Mrs. Hills’s enclosure number three in the letter of 13 June that I believe was sent to all Committee members:
“The canons of statutory construction state that a statute is always presumed to effect a change in the law. Thus, where there is expressed on the face of the Bill a statement which might appear to set out no more than the existing law, it is assumed to change the law.”
Lord Bassam did not appear to be aware of that principle when moving his amendment No. 7 on 28 June 2005. I hope that the Parliamentary Secretary can help us with that.

Alun Michael: This interesting group of amendments demonstrates, to a great extent, the care that we need to exercise in seeking to amend the existing legislation and the Bill. It is not so surprising that it has taken a considerable time for the Bill to be advanced, because the greatest risk that we face is that slight changes that appear to have no great effect now will have unintended and devastating consequences further down the line.
I object strongly to the amendments on religion. I am sorry to disappoint the hon. Member for Isle of Wight, but I am neither an avid student of Australian law, nor have I been called to the Australian Bar, and I have not read about how its legislation is phrased, although I suspect that it may have been done differently. I object to the amendment because it would be a major change to measures that are believed to reflect to a great extent the present law and mean that we are not to have unintended consequences. I suspect that there would be considerable unintended consequences were we to accept the amendment, with changes that we could not entirely predict for a variety of organisations recognised by the existing law as engaging in religious activities.
My main point is that words are important. Even John Humphrys agrees—so it must be true—that it is essential that people take notice of the way in which they express themselves and the way in which they use grammar and words. The phraseology that the hon. Gentleman has proposed is logically and philosophically unsound. One does not put beliefs into practice; one acts consistently with beliefs. Principles for behaviour might be based on belief, particularly on the belief that there is a divine being who has expressed views about how believers should behave, whether on tablets of stone or in other ways. The fact that the phraseology asks people to put beliefs rather than principles into practice means that it is fatally flawed and therefore cannot have the consequences suggested by the hon. Gentleman unless we ignore the fact that it is philosophically and linguistically unsound.
On amendment No. 70, if we override other legislation in a Bill, we must be very careful to ensure that there are no unintended consequences. Most of us in the House have sought during debates over the years to deal with one principle adequately in one Bill so that the Bill overrides others and there is no doubt about what the law says. It is a temptation to anybody involved with a particular piece of legislation, but I advise against it. There is case law not only on charity law but on the definitions provided in other legislation, and the danger of unintended consequences is considerable.
I agree entirely about the need to avoid bureaucracy. The Charity Commission and Departments involved in charity, whether the Treasury or others, should simplify their behaviour and make it more consistent, but that is not simple to achieve. It is certainly not simple to put it into a piece of legislation and think that a requirement of uniformity has been brought about.
The issue seems to come down to one particular organisation, the Police Dependants Trust. The hon. Gentleman explained the valuable work done by the trust and smaller charities in a variety of police force affairs. As a former police Minister, I endorse entirely what he said about the unique position of the police in society, the value that they provide and the need to ensure that charities that assist police officers’ dependants can operate adequately, but again, we must be careful not to bring about unintended consequences. What things might those charities want to do that are not charitable according to the Bill?
That was the argument against including a specific clause on the armed forces. Because of their operation abroad, the historic circumstances in which they have been involved and indeed the increasing complexity of their international involvement, it was decided in another place to put the blindingly obvious into the Bill. Occasionally we must do so, but it should be resisted wherever possible, because it appears to exclude other possibilities. I am concerned that if we include the police, we might exclude references, which the hon. Member for Isle of Wight conceded are comparable, to organisations for firefighters, lifeboat personnel and other rescue workers.

Andrew Turner: The right hon. Gentleman asked what activities were deemed not to be charitable. The Charity Commission told me in a letter on 13 May:
“Amongst other activities, the charity gave an automatic gift to members of the force who were away from work on sick leave for more than two weeks and Christmas gifts of £50 to widows and orphans within the police community. These gifts were made without reference to the circumstances of the recipient. Although the object of the charity was to relieve need, the charity did not assess the extent of that need. The trustees of the charity were advised they must review their procedure for the award of such gifts to ensure that they fulfil a charitable purpose.”
The charity was doing wrong by giving a present to people at Christmas.

Alun Michael: We do not know enough about the mischief that the Charity Commission was trying to tackle. I accept that if the circumstances are entirely and exclusively as he described them, it sounds a little bit odd. However, I suspect that there is more to it than that. I assume that the group of charities would have an intelligent conversation with the Charity Commission, which we all agree should be independent and able to undertake those discussions rather than Government Departments. His amendment would not change the situation one iota because the Charity Commission’s regulation of charities needs to be consistent. To have defined those bodies as charitable in terms of the 14 items would not mean that specific action could be undertaken by them without their having to account to, and be regulated by, the Charity Commission. The one mischief that the hon. Gentleman explained clearly in respect of the letter would not be affected by the amendment.

James Duddridge: Does the right hon. Gentleman agree that, rather than dealing with a specific case, the matter highlights a general anomaly? It might be that other public sector individuals should be bought within a definition. The hon. Member for High Peak asked whether we should cancel that if it clearly does a disservice. He was making the point that we cannot add a 13th, 14th or 15th. Perhaps we are talking about the wrong 13th, but there should be a 13th category.

Alun Michael: No, the hon. Gentleman has missed my point entirely. Each of those additional categories is within the existing category, so there is not a problem in that regard. If the particular example cited by the hon. Member for Isle of Wight applied to police charities, there would presumably be a similar objection. By that I mean, the giving of gifts without the regard to need and that would apply to a variety of other charities under the 13 existing definitions. The hon. Gentleman is chasing the wrong rabbit down the hole or the rabbit down the wrong hole, depending on what view is held. Such a process would not have the desired consequence. It is not necessary.
I am sure that we agree with the hon. Gentleman on two points, the first of which is that the police are an extremely important group of people and that support should be possible. The Parliamentary Secretary can correct me if I am wrong, but the police would be covered entirely under the regulations. I am sure that my hon. Friend would have made himself available to satisfy the worries of police representatives. I am worried about the unintended consequences, what is included and what seems to be excluded. If we are accepting the reference to armed forces, we have gone far enough for the variety of international unique circumstances that apply.
As for the couch potato amendment No. 53, I counsel great care when redefining sport. Having spent considerable time discussing what is defined by some as a sport—the hunting of live animals—I have become well aware of all the arguments about whether activities are on one side or another of a particular line. The other sort of activities that have been referred to might qualify, as suggested by my hon. Friend the Member for Bishop Auckland (Helen Goodman), under educational, citizenship and community development or one of the other headings, but the definition of sport seems entirely sensible. It is surely reflective of the common usage of the word outside the media.

Peter Bone: Does the right hon. Gentleman agree that chess is a sport? If so, it would fail the definition.

Alun Michael: If the hon. Gentleman takes it that I am making a personal reaction—it is up to the Charity Commission to interpret the law—I should not have thought that chess was a sport. However, it contributes considerably both to educational and community development activities. Therefore, an organisation that promotes chess would not be ruled out from being regarded as a charity. Such an activity does not need to be defined as a sport in order for the charity legislation to deal adequately with it. That makes my point.

James Duddridge: I shall speak primarily to amendments Nos. 1 and 53. I support amendment No.1, not simply because the cause with which it deals is a worthy one, but because it highlights a potential inconsistency that has not been fully considered. I have come across further inconsistencies during the debate.
I thought that, in the amendment, we had a good example of a public service group coming together and supporting a public service. The right hon. Member for Cardiff, South and Penarth (Alun Michael) produced two more good examples: the fire service, which would indeed be within the public sector, and lifeboats, which are unfortunately not within the public sector. I had been thinking of urging the Minister to consider a specific provision covering not only police charities, but public sector charities to help people who have worked in the public sector. That would provide a great public benefit. I would specifically exclude companies that seek to get around pension arrangements by providing benefits through a charitable body. I support the amendment because it provides a good example, although I do not wish to see a 13th, 14th or 15th addition to the list.
I am aware that there are a large number of definitions of sport. Having done a sweep through the internet, I am further confused about what is and is not a sport. I am surprised that the Bill contains a definition of sport that refers directly to “sport”. I presume that one reason why clause 2(3)(d) states that
“ ‘sport’ means sport which involves physical skill and exertion”
is that there are many activities that involve physical skill and exertion that are not sport and that are difficult to define. I think most hon. Members would agree that sex, for example, involves physical skill and exertion, but clearly most people would not consider it a sport, or propose that it be subject to charitable relief—at least I would not. That highlights a problem of definition. Chess is a useful example because it shows that physical exertion is a factor, but not the only one—it is perhaps low on the scale.

Martin Horwood: Does the hon. Gentleman accept that a helpful definition might be that a sport involves a winner and a loser? That might exclude sex.

James Duddridge: I hesitate before speaking about sex, but I am more than happy to speak outside of the room. I understand that in some cases sex qualifies and in some cases it does not. I think I should move on before I trouble things further, because my wife pays due attention to what I say in the House.
There are a number of sports. Snooker and hang-gliding are out. Mountaineering is in but climbing is out, or perhaps it is the other way round—other hon. Members may be able to explain. It does not make an awful lot of sense, and I believe that it would make more sense to delete the provision entirely and leave the matter to the Charity Commission. It seems sensible that there be a variety of definitions of sport—sport as defined by the Olympic authorities would be very limited and would be different from sport as defined by charities and by local government, whereby certain areas are left aside for sporting activities. Although a sport might not be appropriate for the Olympics, or an appropriate use of public land, it might be appropriate for a charity.

Tom Levitt: I was going to intervene earlier but I thought I would let the hon. Gentleman dig himself a little deeper. He has now passed the sensitive part of his speech. He will be aware that sport is defined elsewhere in law besides in charity law. The Government have introduced the concept of community amateur sports clubs, which receive tax relief akin to, but different from, the tax relief that charities receive. Is he happy for sport to be defined in different ways, or is he asking for the question of what constitutes sport in the context of community amateur sports clubs and their tax relief to be re-opened as well?

James Duddridge: I was unaware of that initiative and therefore am not asking for that question to be reopened.
I simply want to achieve a degree of clarity in the Bill and deleting paragraph (d) as amendment No. 53 proposes would create greater clarity by leaving that definition up to the Charity Commission rather than seeking to define it—in a cack-handed way—in terms physical skill and exertion only. Motorsports is not covered by that definition: Michael Schumacher, who loses 2 litres of water in a race—I realise that he operates in a professional motorsporting environment—would disagree with that. The definition does not make any sense and I therefore support amendment No. 53, which would remove that definition and leave it up to the Charity Commission to decide.

Edward Miliband: We have had an illuminating, even entertaining, debate. For the benefit of the Committee, let me deal with the amendments as they appear in the amendment paper.
The first amendment in the group is amendment No.70, tabled by the hon. Member for Cheltenham. We urge the hon. Gentleman to withdraw it. The effect of subsection (2) is that where an enactment other than the Bill has its own definition of charity, that other definition is preserved. The problem with removing the subsection is that it would introduce uncertainty, for tax purposes in particular. Section 506(1) of the Income and Corporation Taxes Act 1988 contains its own definition of a charity, as follows:
“‘charity’ means any body of persons or trust established for charitable purposes only;”
The important point about that definition is that it applies throughout the UK, whereas the Bill applies only to England and Wales. If we made the Bill’s definition apply to the 1988 Act, which removing subsection (2) would do, the effect would be to exclude charities in Scotland and Northern Ireland from the tax benefits that would exist. Charities in those territories would no longer qualify as charities under the definition in the 1988 Act. That is obviously not the hon. Gentleman’s intention, but give that that would be the effect of his amendment, I hope that he will withdraw it. I will deal later with the point that the eagle-eyed hon. Member for Isle of Wight made about the possible contradiction between this clause 1(2) and clause 2(7).
Amendment No. 1, which stands in the name of the hon. Member for Isle of Wight and his hon. Friends, is about the police. The whole Committee agrees that police charities do an enormous amount of good work for police officers, ex-police officers and their families, and all of us want that work to continue. It is important to state that at the outset.
The purposes of the Police Dependants Trust are covered by clause 2(2)(m), which is a catch-all provision, and clause 2(4)(a) in combination. It is already charitable to provide welfare services which meet the identified needs of serving or former police officers or their dependants. We are confident that it will remain so.
When my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins) was the Minister in charge of the Bill, he received a letter from Mr. Norrie Flowers, the chairman of the Police Dependants Trust, urging the Government to table an amendment such as amendment No. 1. Mr. Flowers listed some of the services that the Trust was thinking of providing and sought reassurance that they would be charitable under the Bill. However, those services were not described in detail, so my hon. Friend was not, at that point, able to state definitively whether they would remain charitable. As I understand it, Mr. Flowers was offered a discussion with the officials working on the Bill, which has not yet happened. However, I am keen to meet representatives of the Police Dependants Trust to discuss their activities; I also want to ensure that they meet my officials and Charity Commission officials for further discussions.
I think that it would be much better to avoid an amendment that would add a new category to the list of 13—a list that has already grown by three or four since the strategy unit recommendations. The main case has been made by my right hon. Friend the Member for Cardiff, South and Penarth: if we include the Police Dependants Trust or its activities in the Bill—worthy though they are—we shall inevitably face calls to extend the list to all kinds of other categories. I take the point made by the hon. Member for Rochford and Southend, East that one could have a catch-all public services category, but I fear that that would only provoke further calls for the inclusion of other categories and provoke further definitional problems.
We want to ensure that the Police Dependants Trust can continue its activities. I have not seen the letter from the Charity Commission but we shall consider it along with the specific issue raised by the hon. Member for Isle of Wight. The trust’s activities are obviously beneficial and important, but charity is about pursuing purposes to meet needs, and it is important that the Charity Commission—it is a job for that body—is satisfied that an activity is occurring to meet needs, and not for other purposes. I have no reason to believe that the activity the hon. Gentleman mentioned is not intended to meet needs and for genuine purposes, but we should examine that and I am happy to report back on Report. I hope that on that basis the hon. Gentleman will not press his amendment.
Clause 2 provoked an interesting and learned discussion. Let me deal first with what may be called the Australian red herring, because I have news about Australia that is important for the Committee. In 2003, the Australian Government published draft legislation for charity law reform, and there was a clause on religion that set out not a definition of religion such as the hon. Gentleman seeks, but a number of matters to which regard should be had in deciding whether or not a belief amounted to a religion. Those matters included the substance of the hon. Gentleman’s amendment. After a public consultation, however, the Australian Government decided not to proceed with the legislation, so there is not necessarily an Australian example for us to follow.
It may be helpful if I explained to the Committee the current charity law definition of a religion and some of the implications of the Bill. For a belief system to qualify as a religion it must have essentially two features: the first is a belief in a supreme being or beings, and the second is the expression of that belief through worship of the supreme being or beings. My understanding is that humanism is not included within the scope of religion, and that that will remain so after the legislation is passed. Humanism is covered by the charitable purposes in the catch-all provision, clause 2(2)(m), and societies for humanism are given charitable status on the basis that they contribute to the moral and spiritual improvement of the community. The Charity Commission ruled out the Scientologists, who have been mentioned in the debate, because apparently they do not have an act of worship.
Part of the confusion about the Bill arises from clause 2(3)(a), a provision which was amended following recommendations of the Joint Committee. The suggestion was that religion should include
“a religion which involves belief in more than one god, and...a religion which does not involve belief in a god”.
That does not include the humanists. That was put into the Bill in response to the Joint Committee’s worries that, otherwise, some of the nine major world religions, in particular, Jainism—because it denies the existence of God—would not be covered. The provision was drafted partly in response to concern about that, but it has caused some confusion.
The hon. Member for Isle of Wight asked how the Charity Commission was interpreting legislation in that area. It is my understanding that the Bill will not fundamentally change the definition of religion as it will be applied by the commission. Perhaps that is why it seems to the hon. Gentleman that the plan is to continue to implement the existing law. The purpose of the Bill in to clarify the law—to make clear the definition of religion and what is or is not included. That is the basis of the provisions on religion.

Andrew Turner: It would be unfair of me to ask the Minister a question that I could not answer if he asked it of me, so I shall not ask him, but I should like someone to tell me what is the supreme being in which Jains believe if it is not a god, which qualifies Jain organisations to be charities.

Edward Miliband: The hon. Gentleman is completely right. I do not know the answer to that question.

Martin Horwood: Having spent a year in India, I might be able to assist the Minister. In several Indian religions, including Jainism, great respect is paid to prophets and to those interpreters of the world who are not divine, just as Buddha in Theravada Buddhism is regarded as having achieved nirvana or enlightenment, not divinity.

Edward Miliband: That certainly satisfies me. I am grateful to the hon. Gentleman for that explanation.

Tom Levitt: My hon. Friend will be aware from a previous conversation that my concern about the clause was not philosophical, but mathematical. Subsection (3)(a)(i) includes polytheism and subsection (3)(a)(ii) includes atheistic religions; there is, however, no specific mention of monotheistic religions. Am I right in thinking therefore that, when the clause says that “religion” includes those definitions, it does not exclude other definitions?

Edward Miliband: My hon. Friend is right. It important to say at this early stage in proceedings that the Bill will be built upon the common law definitions of a charity that have been built up over more than 400 years or so. The confusion in Committee might sometimes arise from the fact that we are building on that foundation. In the case my hon. Friend raises, a belief in the supreme being or beings and the expression of that belief through worship of a supreme being or beings is part of the common law definition of religion in terms of charitable purposes.

Peter Bone: Is the Minister saying that nothing will really change in relation to religion in the Charity Commission’s administration? If so, why are we bothering to add the extra definition?

Edward Miliband: It would be wrong of me to say that that thought has occurred to me at any point during the past eight weeks when I have been learning the details of the Charities Bill. The answer to the hon. Gentleman is that we are undertaking a Herculean task, which is to set out a list of charitable purposes that can take forward the implementation of charitable status in the coming decades. We need to set them out as best we can in the Bill. His understanding is correct in that the definition of religion for charitable purposes has been established under law and it will not change materially.

Helen Goodman: One of my constituents, the former Bishop of Durham, said famously that the resurrection is not simply a trick with a bag of bones. My concern about the amendment tabled by the hon. Member for Isle of Wight is that he is trying, by including a reference to a supernatural principle, to come to a precise theological position on religion. It is not appropriate for the Committee to do that. Notwithstanding the fact that the Church of England is the established national Church in England, does my hon. Friend the Parliamentary Secretary agree that it is not appropriate for us to present definitions of religion that are too theological?

Edward Miliband: I agree.

Tom Levitt: Surely, the purpose of the Bill—the biggest review of charity legislation in the past 400 years—is seen in clause 2(2) and the other provisions are subservient to it. Clause 2(2) contains a list, established through case law and other sources, that will form the definition of a charity for the Charity Commission and others to use. The value of clause 3 is that it helps to define one of the words used in clause 2(2)—“religion”—the meaning of which has changed fundamentally over the 400 years since the concept of charity law was first produced. For the first 350 or so of those years, there would have been a narrow definition of the use of the word “religion” in the common law on charities: it would have meant Christianity and nothing else.

Edward Miliband: My hon. Friend makes an important point. We are trying to strike a balance between setting out principles that will take us forward and are flexible enough to accommodate changes in social circumstances over time. I hope that we are striking the right balance.
A number of concerns have been raised about the amendment tabled by the hon. Member for Isle of Wight. We are concerned that it would significantly widen the definition of “religion” when that is not necessary, and there is a risk of including some beliefs that perhaps ought not to be included. During a debate on a similar amendment in another place, my noble Friend Lord Dubs referred to “‘nutty’ religions”. However, we are more worried about irrational, bizarre beliefs of other sorts and about some perfectly respectable beliefs that, nevertheless, ought to have no place in religion. For the benefit of the Committee, the dictionary definition of “supernatural”, is that which is attributed to or thought to reveal some force above the laws of nature, or is magical, occult or mystical. Any belief founded on a principle of that sort could potentially qualify as a religion under the amendment. I am not convinced that that would be a good way for us to go. Palmistry, horoscopy and tree worship might qualify as religions under the amendment, although I am sure that that is not the hon. Gentleman’s intention. There is a danger that the breadth of the amendment might allow all kinds of practices to claim religious status. I hope that, on the basis of our full debate, including the exposure of the Australian red herring, the hon. Gentleman will not press his amendment.
On amendment No. 53, also tabled by the hon. Gentleman, I am sympathetic to the idea that there are all kinds of sports and that people have different predilections for sport and those should be accommodated in the law. However, by defining sport in the terms that we have used, we are retaining in essence an approach that has already been established by the Charity Commission. Chess is not allowable under the “other sport” category, but, having said that, chess organisations can come into charitable status in all kinds of other ways. More than a dozen chess charities are registered as charities, mainly under the advancement of education heading. For the benefit of the Committee, the other sports that are not considered to be covered by the definition are angling, ballooning, billiards, crossbow and rifle shooting, flying, gliding, motorsports and parachuting.
Given the debate, we should reflect on the argument that has been advanced. I am not convinced that simply taking out the relevant subsection is the right way forward, but I do take seriously what hon. Members have said. As my right hon. Friend the Member for Cardiff, South and Penarth said, we must avoid unintended consequences. We must not start a new argument about hunting, for example, or anything like that. We will go away and, in the spirit of charity, reflect on the matter and report back on Report.
The hon. Member for Isle of Wight, a former teacher, set me an exam question on amendment No. 3: he asked me explain the consistency between clause 1(2) and clause 2(7). The purpose of clause 2(7) is to ensure that wherever there is reference to charitable purposes in primary or secondary legislation or in any document, charitable purposes is to be construed in accordance with clause 2(1). A document includes, most importantly, the written constitution of every charity. Subsection (7) makes that apply to legislation and documents passed or created before the Bill, except where the context requires otherwise.
The purpose of the hon. Gentleman’s amendment, which is acknowledged is probing, is to ensure that the Bill’s definition of charitable purposes applies only in legislation and documents passed after the Bill. Let me give a few examples to illustrate the way in which the amendment would not be helpful. The first is to do with references to charitable purposes in legislation. Many pieces of legislation refer to charitable purposes, including the 1988 Act to which I referred earlier, which gives exemptions to charities from income and corporation tax on the income that they spend for charitable purposes. The difference between clause 1(2) and clause 2(7) is that the exception in clause 1(2) caters to, for example, tax laws applying to charities throughout the UK, whereas clause 2(7) is about achieving a common definition of charitable purposes. That is the distinction between them. I hope that clears up the confusion.
We are seeking a common definition of charitable purposes—as clause 2(7) ensures. However, we also want to accommodate the situation in which a different definition of charity applies in law and we might want to keep that definition. We are concerned that the reference to charity in the 1988 Act applies across the United Kingdom, but the Bill applies only in England and Wales. We do not want the charitable benefits to be removed from charities in Scotland and Northern Ireland. I hope that clears that point up for the hon. Gentleman and that I have successfully answered his exam question.

Andrew Turner: I am grateful to the hon. Gentleman for his answer. We must assume from his answer that the words “charitable purpose” do not appear in the 1988 Act and the word “charity” does. Otherwise, I do not see how what is appropriate for England in subsections (6) and (7) can be appropriate for the whole United Kingdom under subsection (2). Is the Minister saying that a charity whose charitable purposes are defined as its objective in its constitution will have to change its constitution to fit the definition in clause 2(1)?

Edward Miliband: Yes, but I am afraid that the hon. Gentleman was not correct on his original point. As I said earlier, section 506(1) of the Income and Corporation Taxes Act 1998 says that
“‘charity’ means any body of persons or trust established for charitable purposes only”.
It contains both the word “charity” and the phrase “charitable purposes”.
I am trying to explain, not very eloquently, that there will now be a common definition of “charitable purposes”, as the Bill will change the definition in the 1988 Act. The definition of “charity” in the 1988 Act is a UK-wide definition—importantly so, because taxes are a reserved and not a devolved matter—and must remain so. It must not come into line with the Bill’s definition of “charity”, because if it did so, it would apply only to England and Wales, depriving Scotland and Northern Ireland of the benefits of charitable status.

Tom Levitt: I am grateful to my hon. Friend for the clarity and consistency of his summary. He sets a high standard for the rest of the Committee. I am particularly grateful that he has rejected what we might call the Cheltenham principle throughout—the idea that a harmless but not entirely necessary proposal should be included simply on that basis. I hope for similar consistency throughout the Committee.

Edward Miliband: I thank my hon. Friend for his kind remarks, and I hope that the hon. Member for Cheltenham is not too wounded.
To make it clear why we hope that the hon. Gentleman will not press his amendment, I shall give a second example involving charitable purposes and documents, including charities’ constitutions. If an organisation is an existing, grant-making charity, its constitution might say that it can make grants to one or more charitable purposes as the trustees may from time to time determine at their discretion. It is important that that definition of “charitable purposes”—I think that he referred to this—is consistent with the Bill and not some other definition. That is the purpose of the clause under scrutiny. I hope that I have satisfied him on this rather difficult and arcane area, and that he will not press his amendment.

Martin Horwood: I am grateful to the Minister for his explanation of the legal implications of amendment No. 70, and am therefore content to withdraw it. However, I hope that he will take account of the spirit of the amendment and the implication behind it, as well as the explanation that he gave to the hon. Member for Isle of Wight about his amendment. There is a risk that inconsistency will spread and proliferate throughout the legislation, making life complicated for the administrators and treasurers of charities.

Edward Miliband: I meant to cover the hon. Gentleman’s point about the Inland Revenue and the way that it administers the definition of “charitable purposes”. It is clear from my explanation to the hon. Member for Isle of Wight that there will now be a common definition of “charitable purposes”, which should be consistent in its administration.

Martin Horwood: I am grateful for the Minister’s reply, but I will be extremely surprised if that is the practical result, because I suspect that the different definitions used by the different wings of Her Majesty’s Revenue and Customs will still exist. However, I am content to let him investigate that in his own time.

Andrew Turner: From his intervention, the Minister seems to be saying that the definition of a “charitable purpose” will be the same in Scotland as in England and Wales, although perhaps I shall be told that I have got that wrong. I certainly understood that the purpose of the amendment tabled by the hon. Member for Cheltenham was to bring the definition into line with that in Scotland. I accept that the Minister may be saying that the definitions are already in line, but as the issue of fee-charging charities is clearer in Scotland than in England, I do not see how they can be the same.

Martin Horwood: The hon. Gentleman slightly misses the key point, which is that there are different definitions of “charitable purpose” and “charity” in different pieces of legislation that apply to the same territory. It is that inconsistency to which I am trying to draw the Minister’s attention, and I hope that he will address it in due course, even if not through the Bill.

Peter Bone: I was not going to intervene on the hon. Gentleman, but the Minister has taken me by surprise with his statement that, for the purposes of Her Majesty’s Revenue and Customs, “charitable purpose” will have a common definition. I am sure that there will be a different interpretation for tax law; I should be very surprised if there were not.

Martin Horwood: I suspect that the hon. Gentleman is correct and that the Minister may not be quite right. There is room to iron out some of the remaining inconsistencies, particularly those on the application of tax relief.
I turn to the amendments tabled by the hon. Member for Isle of Wight. He is on safer ground when talking about sport and policing than about theology. The general principle that he has advanced for some categories but not others is that the Charity Commission, the charity tribunal and the courts should be left to give the detailed definitions of some of the ideas and concepts. We should do that for religion as for sport, so I oppose the hon. Gentleman’s amendment No. 2, which seeks to insert what I think is a flawed definition of religion. On the same principle, I support his amendment No. 53, which would remove an equally flawed definition of sport. Under that principle, I hope that we would leave a bit more latitude to the court, the Charity Commission and the tribunal to deal with the detail.
At the risk of incurring the rapier-like wit of the hon. Member for High Peak, I should say that there is some value in taking a clause that might be contested in the courts in future—the hon. Member for Isle of Wight suggested that that was possible in the case of the charity for the police and their dependants—and putting it beyond doubt in the Bill. That seems reasonable. It would be no great sacrifice for us to add a 14th type of charity to the 13 already mentioned, especially as there will not be a great opportunity to add dozens more and we shall not open a can of worms in that respect. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

None

The “public benefit” test

Martin Horwood: I beg to move amendment No. 71, in clauseÂ 3,Â pageÂ 3,Â lineÂ 21,Â leave out from ‘whether’ to end of line 23 and insert—
“a body provides or intends to provide public benefit, regard must be had to—
(a) how any—
(i) benefit gained, or likely to be gained, by members of the body or any other persons (other than as members of the public), and
(ii) disbenefit incurred, or likely to be incurred, by the public in consequence of the body exercising its functions,
compares with the benefit gained or likely to be gained by the public in that consequence, and
(b) where benefit is, or is likely to be, provided to a section of the public only, whether any condition on obtaining that benefit (including any charge or fee) is unduly restrictive.
(2A) It is presumed that a charity established to benefit the natural environment, or the living species within it, exists for the public benefit.’.
I should like to raise what is almost a point of order. We submitted two different amendments that have emerged as one. The first part of the amendment, which clearly relates to public benefit and the insertion of the Scottish guidance on its implementation, was separate from the last subsection (2A). I shall deal with that second provision first.
Our new subsection (2A) is intended to close what I think is a loophole in the Bill, so that the preservation of, or concern for the welfare of, species or elements of the natural environment, which cannot automatically be assumed to be for the public benefit, would nevertheless be considered charitable. Charities that are for the protection of the environment clearly qualify under clause 2, under the heads of charity. However, under the Bill, by contrast to previous charity legislation, they must also now pass the public benefit test. It is not clear to me how the preservation of an area of wilderness, such as the Antarctic or the Arctic, would be easily defined as for the public benefit. Likewise, we can imagine that the work of a charity such as St. Tiggywinkles, which looks after the welfare of hedgehogs, has no great implications for biodiversity or pet care that might indirectly benefit the public. What I wanted to achieve by the provision was to put the issue beyond doubt.

Helen Goodman: I am most sympathetic to the hon. Gentleman’s arguments. In a sense, to go back to the discussion that we had about religion, he is saying that we have moved on from the idea that the world is here simply for our pleasure and that we can exploit and use it. He is right if he is talking about whether all the value of the natural environment is to be measured in terms of the pleasure that we derive from it. Is that the point that he is making?

Martin Horwood: I am grateful to the hon. Lady, who has made the point far more eloquently than I was doing. She is entirely right. The amendment is also intended to reflect the simple humane instinct to be charitable, which is relevant to the simple care of animals such as hedgehogs, where not even environmental benefit is at stake.

Alun Michael: I am interested in the hon. Gentleman’s response to my hon. Friend, because it seems to me that the list in clause 2(2) very much reflects the developments that he was referring to. Paragraph (i), for instance, refers to
“the advancement of environmental protection or improvement”
and I also particularly welcome, as I did on Second Reading, the inclusion of animal welfare. It is clear that animal welfare cannot directly be the welfare of people. Is not it essential, however, that there should be a test to prevent an organisation’s simply saying, “We exist to serve the arts”—to take the arts as an example—“and therefore we are charitable”? There must be a test of whether the organisations will operate for the wider public benefit, and that is what the public benefit test is about. However, clause 2(2) surely covers the hon. Gentleman’s point.

Martin Horwood: The right hon. Gentleman is right up to a point. The point about the list in clause 2(2) is that it is necessary but not sufficient to achieve charitable status. A charity must fall within it and be for the public benefit. Falling within the categories listed in subsection (2) and being for the protection of the environment is not sufficient for the achievement of charitable status. However, I agree that it is right that there should in addition be a public benefit test. Indeed, the rest of the amendment clearly shows that I should like a stronger public benefit test. I am simply trying to put beyond doubt certain categories of charitable activity that would not immediately show themselves to be for the public benefit, and to make it clear in the Bill that they are to be treated as being for the public benefit. I hope that that reassures the right hon. Gentleman.

Alun Michael: Yes, I think that there is not a great difference between us, but we need to be careful about amending the Bill, because inclusion in clause 2(2) suggests that there is a public benefit in improving the environment and in animal welfare and so on. We regard those as part of what my hon. Friend the Member for Bishop Auckland called those we share the planet with. That brings those activities specifically within the ambit of charitable activity. We must not go the further stage of saying that because environmental benefit or any other aspect of the amendment is presumed, someone would be treated as a charity and no more questions would need to be asked.

Joan Humble: Order. May I take this opportunity to remind all Members that interventions should be brief?

Martin Horwood: I take the right hon. Gentleman’s point, but the point is worthy of an amendment to clarify it and to put it beyond doubt. I shall leave it at that.
The larger part of what has ended up as the amendment would insert into the Bill word for word the definition that has been adopted by the Scottish Parliament in the Charities and Trustee Investment (Scotland) Act 2005. That has a number of things to recommend it, as I said in my speech on Second Reading. First, there is the obvious benefit of consistency. The point was made in that debate that, with the devolution of powers, we do not have to have consistency—it is not necessary or compulsory in any sense—and I quite agree with that. I am a great supporter of the decentralisation of power and would not seek to impose either the English definition of public benefit on Scotland or vice versa. Nevertheless, there is an advantage to consistency where it can be adopted.
Since Scotland has gone through that process and adopted what seems to me to be a good set of guidance on how public benefit is to be implemented by the Office of the Scottish Charity Regulator, it would be an advantage to charities that operate both north and south of the border to have the same definition and guidance reflected in our Bill. There is also an argument in principle in favour of the Scottish test. I shall not repeat everything that I said on Second Reading, but I would like to make it clear that some of the attacks made on the clause at the time were not justified.
The measure certainly does not seek to attack private schools or other institutions that might be seen to be subject to it more than charities in general. It is about encouraging the best possible practice. That became clear in the Scots debate, when Donald Gorrie MSP set out the desired outcome, which I would recommend as well. He said:
“The position that I take, and which Liberal Democrats and, I hope, other people take, is that it should not be a blanket yes-or-no question as to whether fee-paying schools can be or must be charities. Each fee-paying school should have to demonstrate...that, in all the various ways in which it works, it provides a genuine public benefit—through its scholarships, through use of its facilities, through the training that it gives trainee teachers and through the work that it does in the community as a whole.”—[Scottish Parliament Official Report, 9 March 2005; c. 15113.]
Those sentiments were echoed by Labour Members and Ministers in the Scottish Parliament and were clearly not intended as an attack on the sector as a whole.
Now that the Scottish Act is law, OSCR has issued guidance on the public benefit test and its interpretation of it. That guidance makes it quite clear that the amendment is a moderate and reasonable proposal. It states:
“It is worth noting that the Act draws a distinction between disbenefit and unduly restrictive conditions (including any charge or fee). The mere imposition of charges or fees is therefore not to be considered a disbenefit: rather, the level of charges or fees must be considered in the context of the provision of benefit to a section of the public and the relative impact such fees, charges or other restrictions have.”
It goes on to say:
“The Act, in stating that a condition may not be unduly restrictive, accepts that there may be a certain level of restriction. The issue is whether any condition is unduly restrictive: in other words, whether it is excessively restrictive or restrictive in contradiction of moral or legal standards. The fact that a (prospective) charity provides benefits that will be charged for and will be provided mainly to people who can afford to pay the charges does not necessarily mean that the organisation is not set up for and does not operate for the benefit of the public.”

Andrew Turner: Can the hon. Gentleman tell me whether he thinks, in view of the fact that there is a reducing number of applications for higher education, that the fees charged by higher education institutions are unduly restrictive according to the definition that he has just read out?

Martin Horwood: I think that I have spotted the trap that the hon. Gentleman has laid for me. I am not in favour of top-up fees of any description in higher education, but I did not say that they contradicted moral or legal standards in the way that OSCR describes. Top-up fees would certainly not exclude a British university from charitable status.

Edward Miliband: The hon. Member for Isle of Wight asks an interesting question, and the hon. Member for Cheltenham has given his answer. Perhaps he could say why he believes that top-up fees are not unduly restrictive.

Martin Horwood: That is something that I happily leave to the court, the Charity Commission and the tribunal.
The purpose of the amendment is clearly simply to set a higher bar for the public benefit test. In a briefing to its members, the Independent Schools Council gives exactly the kind of advice that I would have wanted it to give on that point. It says that that is not actually a great risk to private schools that are seriously attempting to promote public benefit, and says:
“The Commission is primarily there to help charities stay within the law, rather than to penalise charities which are having difficulty delivering enough public benefit. If the Commission considers that a school is not delivering enough public benefit its first course will be to advise the trustees. The aim will be to repair the public benefit deficit within a reasonable timescale, and the Commission will advise the trustees in this process.”
It goes on:
“Loss of charitable status is very much the last resort. In most cases it would require two sets of intransigent trustees (which is hardly likely) for the Commission to invoke this ultimate sanction.”
It is clear that the Independent Schools Council, while lobbying against that stricter definition or guidance on public benefit, acknowledges in its advice to its members exactly what we are saying: that a stricter public benefit test will result in more public benefit, and in organisations such as public schools seeking to advance the public benefit more obviously and demonstrably.

Andrew Turner: How would the hon. Gentleman view this extract from the Charity Commission’s document, “Public Benefit—the Charity Commission’s approach”? Where charities are not delivering public benefit, the commission says more or less the same thing as the Independent Schools Council, but the document goes on to say:
“However, in extreme cases, where the trustees are co-operating with us but the organisation simply cannot in all the circumstances provide public benefit, our action might include removing the charity from the register and making a legal scheme where necessary to ensure that any charitable assets of the organisation will in the future be applied for other charitable purposes”.

Martin Horwood: I am surprised by what the hon. Gentleman has read, and it would be useful to know the context of the extract, but presumably it applies to the law as it stands now. Is that correct?

Andrew Turner: I certainly assume so—save, of course, for the important distinction that the hon. Gentleman is supporting the abolition of the presumption of public benefit in education, which I find somewhat more difficult.

Martin Horwood: I do not think that the hon. Gentleman’s quote from the Charity Commission necessarily invalidates what I have been saying. In fact, there are plenty of quotations—from the National Council for Voluntary Organisations, various representatives of the voluntary sector and, indeed, other commission documents—to suggest that there is still confusion under the current law; that, if the new public benefit test changes things at all, that confusion will remain and perhaps increase; and that therefore much more clarity is needed in the Bill. It is that clarity that I seek to provide through this amendment.

Andrew Turner: This is an interesting amendment, not least for the fact that it has two separate elements. When I read clause 3, I must say that I found it hard to believe in light of what the hon. Gentleman said on Second Reading. He asked me:
“Am I right in thinking that the hon. Gentleman is therefore retreating even from the position of his noble Friends in another place? They said that ‘all charities’ should ‘have to meet a public benefit test, no matter what their purposes are’.”—[Official Report, 26 June 2006; Vol. 448, c. 38.]
I misunderstood the hon. Gentleman completely because I thought at the time that he was concerned because he thought I was wrong to resist the abolition of the public benefit presumption. Now I know that it was not that he objected to the public benefit presumption—indeed, he is in favour of it in the appropriate circumstance—but that he was merely concerned about my welfare in the junior ranks of the Opposition Front Bench, in case I might inadvertently have stumbled and disagreed with my noble Friend Lord Hodgson.

Martin Horwood: I think the hon. Gentleman is getting his presumptions mixed up and I apologise for the poor drafting of the amendment if that is the case. The presumption that I was attacking on Second Reading was a presumption that attaches to any specific one of the 13 heads of charities. I do not suggest that, under this amendment, any of them should not have to pass a public benefit test.

Andrew Turner: I am not sure that that statement is consistent with the amendment, which states:
“It is presumed that a charity established for the benefit of the natural environment, or the living species within it, exists for the public benefit.”
That is exactly the public benefit presumption—[Interruption.] The Parliamentary Secretary makes my point more quickly than I could. It’s a fair cop. I am pleased that the Liberal Democrats have gone away from their assumption that all presumption is bad presumption.
If I may assist the hon. Member for Cheltenham in answering the right hon. Member for Cardiff, South and Penarth who intervened in his speech, the mere fact that there is a presumption does not mean that that is the end of it. It means that it is the beginning of it; if a charity misbehaves, it can lose the benefit of that presumption as I believe happened at the Finsbury Park mosque. I am very pleased indeed that the hon. Gentleman has accepted that there is nothing wrong with presumption. I would find it difficult—he is shaking his head, so presumably I have misunderstood him.

Martin Horwood: The hon. Gentleman has misunderstood me. I know there is a slight temptation when in a hole to stop digging, but I will attempt to explain the difference to him. If the amendment were accepted, a charity that qualified under clause 2 (2)(i), which refers to
“the advancement of environment protection or improvement”,
would still have to prove that it passed a public benefit test. It is the term “public” that my amendment sought to clarify, not “to unduly restrict”.

Andrew Turner: The lawyers would have a field day when they tried to tie up the words in the amendment with the words uttered in Committee. I suspect that the words in the amendment would take precedence, which is the normal procedure.
I was about to say that many charities and organisations in the Isle of Wight are, in my view, entitled to charitable status—for example, the Isle of Wight donkey sanctuary and the Isle of Wight bat hospital—which may not be charities, but which deliver exactly the kind of benefits, whether public or otherwise, that the hon. Gentleman seeks to secure. I am very glad that he does so and were the two parts of the amendment separate, I would be happy to support him. I hope he will be happy to support me when we come to amendments Nos. 4 and 54.
I would like clarity about what the rest of the amendment means. First, I assume that “members” in the phrase “members of the body” in the amendment does not mean the same as members in the sense of members of a company, but I am not quite sure. The members of a company are the directors; the members of a charity are the trustees.

Martin Horwood: I am grateful for the intervention, but the hon. Gentleman is wrong. Members are not equivalent to trustees. There are membership organisations—such as the Alzheimer’s Society, the Multiple Sclerosis Society, the Royal Society for the Protection of Birds or the National Trust—whose membership is substantial but is not at all the same as the trustees, who are the governing body of the organisation. That is the distinction.

Andrew Turner: That was exactly why I raised the issue. I was not sure whether the hon. Gentleman meant members in the sense of the members of a company, who are the directors of the company, or members in the sense of members of the National Trust, who pay their five shillings or whatever and receive a glossy magazine every couple of months. Now I understand what the hon. Gentleman means by “members”. The amendment goes on to say
“or any other persons (other than as members of the public)”.
I think that he is saying that the Charity Commission should consider, in relation to whether a body is providing a public benefit, whether the members of the body gain more than other persons—that is, members of the public.
The hon. Gentleman argues that the Charity Commission should also consider
“disbenefit incurred, or likely to be incurred, by the public in consequence of the body exercising its functions”.
In introducing the amendment, he did not really say anything about that. I wonder exactly what kind of disbenefit he has in mind. What kind of disbenefit can a charitable nursing home confer on the rest of the world? What kind of disbenefit does a school confer on the rest of the world? Perhaps he could go into more detail. He said on Second Reading that he would be quite generous towards the independent sector, and I am trying to work out what exactly is covered up by the words “disbenefit” and “compares with the benefit gained, or likely to be gained, by the public in that consequence”.

Martin Horwood: I can reassure the hon. Gentleman that there is no cover-up. In fact, a very public document, the guidance from the Office of the Scottish Charity Regulator, explains the matter in enormous detail. I shall not test your patience by reading it out now, Mrs. Humble, but perhaps in my closing remarks I can quote any passage that the hon. Gentleman is interested in that explains exactly how disbenefit is to be interpreted.

Andrew Turner: I look forward to that, as I am sure the rest of the Committee does. With any luck, we will then be ready for lunch. Before then, however, I would like to raise some other issues relating to the amendment, because the behaviour of the Charity Commission, the National Council for Voluntary Organisations and one or two other organisations in respect of this principle has been pretty odd. They started by saying that amendments were not needed. They now seem to have gone head over heels—I think that is the polite phrase—and decided that there is a reason for the principle.
In the Committee that scrutinised the draft Bill on 9 June 2004, Lord Foulkes, who was then a Member of this House, said that
“you have not suggested any definition of public benefit”.
Mr. Etherington, for the NCVO, said:
“Because there is an established common-law definition of public benefit in relation to the four existing heads of charity.”
Mr. Foulkes, as he then was, said:
“But that has been discredited”
and Mr. Etherington said:
“I do not believe it has been discredited.”
Later, under question 59, Mr. Etherington said that
“my own view is that public benefit established through case law has worked well in relation to the fourth head of charity. It is a flexible mechanism, it is a common-law mechanism and it prevents the common law from becoming sclerotic”—
that is a lovely word for someone who has lost their teeth—
“provided that there are adequate appeals mechanisms against which to check it”.
I am interested in why the NCVO and the Charity Commission have changed their position. I understand, of course, that one of their functions is to give advice, but it is odd that they are giving advice without explaining why they have changed their position in an area that is clearly the subject of substantial controversy. It would be helpful if they had explained why they changed their position. Initially, the Charity Commission took the view that the reversal of the presumption of public benefit would have no effect and then they changed their position.
I understand that there was a memorandum agreed between the hon. Member for Slough (Fiona Mactaggart), who was then a Home Office Minister, and the Charity Commission, which set out in some detail that the current law on public benefit would be preserved by the draft Charities Bill. It explained something else that I found particularly interesting, which was that the test of public benefit is not the same for each of those categories in clause 2(2). Where there is already a presumption of public benefit, is it the case that a new public benefit test has to be created? If not, what is the public benefit test given that it is not necessarily the same as the other public benefit tests? That may be why the Charity Commission has changed its position. The problem is that it does not say so. It says that the law on public benefit will evolve and develop over time.
The Charity Commission also says in the memorandum that
“the principles in Re Resch are sufficiently clear to enable them”
—that is, the Charity Commission—to determine whether a particular educational charity is charitable. It then changes its position and we all get confused. Therefore, will the hon. Gentleman, in his summing up, speculate as to why the Charity Commission has changed its position?
I was most disappointed that a circular letter was sent round that the Red Cross signed. I thought that the Red Cross was above politics and political controversy, but Sir Nicholas Young signed that controversial document. At least, I thought it was controversial until the Liberal Democrats supported it. Now I realise that there is unity across the rest of the Committee and that it is probably not controversial at all. However, it sets out a position that few hon. Members appear to support, which is that we need a tighter definition. I speculate as to why that might be.

James Duddridge: The hon. Member for Cheltenham has tried several times to explain his complete inconsistency over putting forward a public benefit test, but has failed to do so in my mind. I will not be supporting the amendment. I would support it if it was part of a broader agreement by the Liberal Democrats to include the presumptive benefit for poverty, religion, education and health that previously existed. However, as they are throwing out those, I see no reason to bring in a public benefit test specifically for the natural environment, however worthy it is.
There has been much debate about large fees. In every case, there has been a leap from fee-paying to schools and education. I am interested to know from the Minister whether any significant organisations outside the education sphere will also be covered because I have not seen any real debate about fee-paying institutions above and beyond the education sector.
It is disappointing that the Government have taken a stance against independent schools. On Second Reading, Labour Back Benchers pressed the Minister to go further and be more restrictive of the education sector. [Interruption.] Did the hon. Gentleman want me to give way?

Tom Levitt: I may have looked as though I was raising my hand, but I was indicating that only one Labour Back Bencher made the argument that the hon. Gentleman is describing.

James Duddridge: I forgive the hon. Gentleman. I have got Hansard, but—I thought the hon. Member for Stroud (Mr. Drew) and another hon. Gentleman made the point and they referred referring to a larger level of support. However, I am more than happy to look at Hansard and talk to the hon. Member for High Peak after the debate.

Peter Bone: Have not the Government missed a trick? Should they not be encouraging private education rather than restricting it?

James Duddridge: I agree. Given the wonderful new Labour phrase “direction of travel”, it is entirely inconsistent that there should be a blurring of the lines between the public and private sectors but that more is not being made of the charitable sector in independent schools and in the health sector. My hon. Friend makes a good point; the Government seem to be going in the opposite direction.

Martin Horwood: The hon. Gentleman continues to portray the amendment as an attack on private schools, despite my assurances to the contrary. Will he explain why the head teacher of Dean Close school in my constituency, whom I quoted on Second Reading, supports stricter guidance on public benefit and says that his school has nothing to fear from it?

James Duddridge: I welcome that intervention, but I speak for myself not for the head teacher of a particular school. I am aware that the Independent Schools Council has taken a certain view. It has written to hon. Members saying:
“For each £1 of fiscal benefit, schools give back £3 in help with fees and other charitable giving, plus a further £2 in irrecoverable VAT”.
All that is on top of some £2 billion that the Government would have to spend to educate people in the public sector. Although I am not a lawyer, re Resch touched upon that issue. It seems that public schools have a clear public benefit, and the biggest benefit is that £2 billion.

Andrew Turner: I have never spoken to the head teacher of Dean Close school, but I recall that when the hon. Member for Cheltenham mentioned that institution on Second Reading, the public benefit appeared to be the use of its theatre. Similarly, the public benefit to be gained from other independent schools appears to be the use of their sports facilities—or even the rowing trenches that were built at huge expense near Slough. Is not the really important public benefit that is to be derived from public education that people are taught and that they learn—and that they and the nation are better as a result?

James Duddridge: My hon. Friend makes the point incredibly well. I agree that that is the overwhelming public benefit. However, that is not to say that there are not other public benefits.
I congratulate the Government on their general push to encourage fee-paying charitable organisations to demonstrate greater public benefit. Withdrawing the presumed public benefit is not right; there are other methods over and above the presumed public benefit that could encourage, if not compel, those schools to be more involved in the community. A number of points were made in the Chamber on those questions and what I have described would be a much better way forward than withdrawing the presumption of public benefit.

Tom Levitt: I was fascinated by the suggestion of the hon. Member for Wellingborough (Mr. Bone) that, because a group of organisations pays tax, they contribute to the public benefit. He said that the money that private schools contribute to the economy should be regarded as a public benefit. I therefore look forward to being classified as a charity because I too pay tax, although not to the same extent. The hon. Gentleman would extend public benefit rather further than do the clauses on charitable purpose that we have already considered.
During the 20 minutes of that six-and-a-half hour Second Reading debate that I was out of the Chamber, my hon. Friend the Member for Stroud spoke. I therefore accept that two Labour Back Benchers were expressing that view, not one. Another, whom I heard loud and clear, was my hon. Friend the Member for Selby (Mr. Grogan), although we seemed to reach some sort of compromise in our exchange. I shall return to that in a moment.

James Duddridge: Does the hon. Gentleman agree that Labour Back Benchers are pressuring the Government to do more in their attack on independent schools? That is one reason why the Parliamentary Secretary would be so clear, forthright and assertive towards that sector. Indeed a number of people hold similar views.

Tom Levitt: The hon. Gentleman should not believe everything that he reads in the newspapers. Certainly there are people who are opposed to public schools in principle. I was disappointed by the number of my colleagues who set their face so firmly against trust status arrangements for local authority schools, but I do not think that there is a one-to-one correlation between those two points of view.
As I said on Second Reading, I have been in the Labour party for 30 years and I am uneasy about the idea of private education. It seems to be intended to bring about privilege rather than pure educational value. That privilege is bought in a way that others cannot afford. Teachers who are very often trained at the public expense are then taken out of the state system and used in the private sector. Those are things that have worried people in principle on our Benches since time immemorial. But we are where we are. In the big church that we advocate on the Labour Benches we take many views on board.
Indeed, the private education system has produced some excellent and senior members of the Labour party. I am sure that it will continue to do so. But that does not mean that we all have had Pauline conversions. I accept that the private sector, especially in the field of special education, provides facilities that the state sector then buys into. That is very valuable. I think in particular of institutions such as the Mary Hare school in Berkshire that are provided on a scale which it perhaps would not be cost effective for the state to fund. The state then buys in so that people whose special needs necessitate it can be educated in the private sector. We are seeing the same in health with operations being bought from the private sector in order to fulfil public need and on a public service basis. In other words it is at no cost to the individual.
All those examples of partnership are valuable. This part of the Bill had a hugely disproportionate amount of scrutiny when it was in another place. I hope that we will not spend the same proportion of our time discussing public benefit. But this Bill is not about the status quo as far as public schools are concerned. I believe it is right to end the presumption that anything that has education in its purpose is automatically a charitable purpose. There has to be a demonstration of public benefit. I pay tribute to those schools in that sector that have already started taking those moral responsibilities seriously. Some public schools are allowing and encouraging the joint use, community use or shared use with other schools of drama facilities, sports facilities or wider school facilities. It may be for summer clubs during the holidays or to help students on pre-university courses. I welcome those examples of partnership.
If the Bill goes further along the road of promoting those partnerships and making sure that the use of those facilities which have hitherto only been the prerogative of the few and the wealthy few, by and large, it is, dare I say it, almost socialist in action and is therefore to be welcomed. The Bill is right that where the public benefit cannot be demonstrated and where there is total exclusion of the public from the use, then charitable status should be withdrawn. But I note that even if every public school were to fail on the public benefit criterion, only something like 4 per cent. of the income of public schools would be removed from them.
While 4 per cent. is useful for them to have and encourages them into the partnerships that we are advocating, it is not a death blow to them should it be removed. Nevertheless, it is important to have the opportunity to say that there is no public benefit from an institution and that its charitable status should therefore be removed.

Martin Horwood: I am enjoying much of what the hon. Gentleman is saying and I agree with a great deal of it, but he might have been wrong on one point of detail. If a public school were by any chance to lose its charitable status, that would be a much more serious matter than just losing 4 per cent. of its income, because, as a non-charitable institution, it would not be able to use the charitable assets that it had accumulated. Charitable assets must remain charitable.

Tom Levitt: Yes, I had not thought of that aspect. I do not know what happens to an organisation’s assets when it loses its charitable status or whether they are affected in that way, but I am willing to take the hon. Gentleman’s word for it. I am not advocating that we should remove the 4 per cent., but that schools should behave in a way that guarantees that they continue to get it.
On this issue, I regard the Bill as progressive. I shall not dismiss the amendment tabled by the hon. Member for Cheltenham as upholding the Cheltenham principle, because it is important that we air these matters. Although we should not adopt the words that he has proposed, we have had a good debate on this subject. We should acknowledge the fact that the issue has undergone particular scrutiny in the other place, adopt the clause as it stands and move on.

Alun Michael: I am grateful for the opportunity to make a couple of brief points, and I hope that we can use the debate to clarify beyond doubt the issue of the public benefit test. There has been a great deal of scrutiny of the provisions, and I hope that the Minister will be able to confirm my understanding of what is happening in them.
I understand why the hon. Member for Cheltenham has tabled the amendment. Essentially, he is saying that having included environmental benefit, for instance, in the list in clause 2(2), there is a danger that the consideration given to the public benefit might lead to it being ruled out again. I can see the point of that, and if we deal with these issues in everyday language, there would appear to be such a danger.
However, my understanding is slightly different. We are muddling up two issues. First, there is a series of specific benefits, which are recognised in the list of charitable purposes in clause 2(2). Environmental benefit, animal welfare and so on are clearly understood as charitable purposes. The public benefit test, therefore, must be a test of the extent to which those purposes are delivered and of whether the way in which the charity is acting is appropriate to delivering them.
However, it would be wrong—this is the fear that the hon. Gentleman is expressing—to return to the list and say, “You cannot identify individuals and groups in the community that get that benefit, so we can overturn its inclusion in the list.” That cannot be right and it cannot be the intention. The public benefit test does not, and cannot, allow the Charity Commission to question whether the charitable purposes listed in clause 2(2) are indeed charitable. From this point on, that must be a given.
The public benefit test relates to the extent to which the charity delivers charitable purposes consistently and appropriately, as against all the other tests of what is charitable, which is very clear, having been set out in previous legislation and in case law.

Andrew Turner: Perhaps the right hon. Gentleman will correct if I am wrong, but he is saying that if a cause occurs under clause 2(2), it is not only a purpose that has the potential to be charitable if it demonstrates that it is to the public benefit, but affects the way in which the Charity Commission will test whether it achieves the public benefit. The Chancellor of the Duchy of Lancaster has said that there has always been a view that public benefit ought to be able to be demonstrated. How does the hon. Gentleman think that the charity concerned could demonstrate that it is to the public benefit in this purpose; that is, to the advantage of environmental protection?

Alun Michael: Let me put it in terms of animal welfare, since that has been the subject of debate over many years. The argument against animal welfare would be that it does not produce a public benefit, because it does not benefit people. The other side of the argument is that there is actually a public benefit to being concerned about the welfare of those with whom we share the planet. Therefore, a public good comes out of animal welfare that may not benefit human beings individually or as a group. That also applies to some of the charities on Isle of Wight, to which the hon. Gentleman referred earlier. Surely, by listing animal welfare, the definition has put beyond doubt the fact that there is a public benefit in pursuing it.
Similarly, there could be consequences in terms of the environment and national parks, with people going out for recreation and enjoyment, and so on, but the environment is mentioned in clause 2(2), which puts it beyond doubt that landscape and environmental benefit is a charitable purpose. Therefore, it cannot be said, using the test of public benefit, that that is not charitable. It would be wrong to have a presumption that any organisation that sets itself up, saying, “I am environmental”, is not subject to question through the “public benefit” test. Such organisations have to be asked, “Are you pursuing that charitable purpose appropriately and efficiently and have you passed all the other tests that are traditionally accepted as the ones that check whether a charity meets its purpose?”
The amendments may result in a danger that clause 2(2) could be revisited and overturned by the public benefit test. Surely, that cannot be the purpose. I am discussing the matter in that way because I hope that my hon. Friend the Parliamentary Secretary’s response might help us kill off that fear, which has created an enormous amount of the debate that took place in another place.
Debate adjourned.—[Liz Blackman.]

Adjourned accordingly at two minutes to One o’clock until this day at Four o’clock.